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Post-16 frequently asked questions (FAQ's) answered by the DfE

What are the rights of parents in relation to decisions about the SEN provision for young people (i.e. those aged 16-25)?

At the end of compulsory school age (the end of the academic year in which a child turns 16) the right to make requests and decisions under the Children and Families Act 2014 automatically transfers from parents to the young person. That does not mean that parents are excluded from the process, but it does mean that it is ultimately the young person who makes the decision, not the parent. The 0-25 SEND Code of Practice makes it clear that local authorities, schools, colleges, health services and others should continue to involve parents in discussions about the young person’s future, particularly when the young person is under 18. Parents can of course support young people in making their decisions and, where the young person is happy for them to do so, they can act on their behalf.

It is important that - where they need it and they have mental capacity to make decisions - young people are helped to make decisions themselves.

How does the Local Authority decide which FE College a young person who has or is to have an EHC plan should attend?

Where a young person has requested a particular college, the Local Authority must consult the college. It must name the college in the EHC plan unless:

  • the college is unsuitable for the age, ability, aptitude or special educational need of the young person, or
  • the attendance of the young person at the college would be incompatible with the provision of efficient education for others or the efficient use of resources.
  • Where a young person has not requested a particular college (or does so, and their request is not met), the Local Authority must specify mainstream provision in the EHC plan unless it would be:
  • Against the wishes of the young person, or,
  • Incompatible with the efficient education of others.

Where a Local Authority considers a particular mainstream college placement to be incompatible with the efficient education of others, it must demonstrate that there are no reasonable steps the college could take to prevent that incompatibility. This principle also applies to nursery and school settings.

Do colleges have to admit someone with an EHC Plan if they believe they cannot meet their needs?

FE Colleges, Sixth Form Colleges, 16-19 Academies and Specialist Post-16 Colleges approved under section 41 of the Children and Families Act 2014 are all under a duty to admit a young person if they are named in a young person’s EHC Plan. Local Authorities must consult a college before naming that college in the EHC Plan and the college will have an opportunity to consider whether and how they might meet the young person’s needs. If they do not believe, even using their best endeavours and making reasonable adjustments as required in law, that they can meet that young person’s needs, they will need to explain that in their response to the Local Authority. It will be for the Local Authority to decide whether or not to name the college in the plan, following that consultation. It must do so unless:

  • the college is unsuitable for the age, ability, aptitude or special educational need of the young person, or
  • the attendance of the young person at the college would be incompatible with the provision of efficient education for others or the efficient use of resources.

Once a college has been named in an EHC Plan it is under a duty, under the Children and Families Act 2014, to admit the young person.

How does the Care Act 2014 affect the legislation on SEND?

The Care Act 2014 and the Children and Families Act 2014 are designed to work together. Where a young person is over 18, the care element of the EHC Plan will usually be provided by adult services. Under the Care Act 2014, Local Authorities must meet eligible needs set out in an Adult Care and Support Plan. Local Authorities should explain how the adult care and support system works, and support young people in making the transition to adult services. Local Authorities do have the power to continue to provide children’s services for young people over the age of 18 where it will be benefit a young person with an EHC Plan, for as long as is deemed necessary.

The Care Act 2014 places a duty on local authorities to ensure there is no gap in support while an individual makes the transition from children’s to adult services on or after their 18th birthday. Children’s services must be maintained until a decision on adult care is reached. Where it is agreed that adult care will be provided, children’s services must continue until adult care begins. Young people will be able to request an assessment for adult care in advance of their 18th birthday so they can plan ahead knowing what support they will receive.

Chapters 3 and 8 of the SEND Code of Practice contain further information.

What happens about transport where a young person chooses a college that is further away from their home than another that could also meet their SEN needs?

As stated in paragraph 9.214 of the 0-25 SEND Code of Practice, the parents or young person’s preferred school or college might be further away from their home than the nearest school or college that can meet the child or young person’s SEN. In such a case, the Local Authority can name the nearer school or college if it considers it to be suitable for meeting the child or young person’s SEN. If the parents prefer the school or college that is further away, the Local Authority may agree to this but is able to ask the parents to provide some or all of the transport funding.

What is the legal position about 5 day a week provision for students in colleges?

The 0-25 SEND Code of Practice (paragraphs 8.41 – 8.44) says that where a young person has an EHC Plan, the Local Authority should consider the need to provide a full package of provision and support across education, health and care. This will normally cover five days a week where that is appropriate to meet the young person’s needs. However, the amount of provision required will vary depending on each individual’s needs. Local Authorities do not have to secure education and training provision across five days, but they should consider it. Five-day packages of provision and support do not have to be at one provider and can involve different settings, including non-educational settings or activities, such as accessing facilities in the local community or health and care activities.

When commissioning provision, Local Authorities should have regard to how young people learn and the additional time and support they will need. For example, courses normally offered over three days may need to be spread over four or five days where that is likely to lead to better outcomes. In making decisions about packages of support, Local Authorities should take into account the impact on the family and the effect this is likely to have on the young person’s progress.

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